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EXHIBIT
1.3
STANDARD
DISTRIBUTION AGREEMENT TERMS
PROTECTIVE LIFE INSURANCE COMPANY
SECURED MEDIUM-TERM NOTES PROGRAM
Dated as of July 21, 2005
This document
constitutes Standard Distribution Agreement Terms which are
incorporated by reference in the Distribution Agreement, dated as
of the date set forth therein (the " Distribution Agreement") ,
by and among the Trust, the Company, and each Dealer specified in
the Distribution Agreement. The Distribution Agreement is set forth
in Section G of
the Omnibus Instrument and these Standard Distribution Agreement
Terms are attached as Exhibit G
to the Omnibus Instrument.
These Standard
Distribution Agreement Terms shall be of no force and effect unless
and until incorporated by reference into, and then only to the
extent not modified by, the Distribution Agreement.
The following
terms and provisions shall govern the terms of the distribution of
the Notes issued by the Trust, subject to such other terms and
provisions expressly adopted in the Distribution
Agreement.
Capitalized
terms not otherwise defined in these Standard Distribution
Agreement Terms shall have their respective meanings ascribed to
them in the Distribution Agreement.
In connection
with the Protective Life Secured Medium-Term Notes Program (the
" Secured Medium-Term Notes
Program "), the Company has
authorized the issuance and sale from time to time of funding
agreements to Protective Life Secured Trusts in order to secure the
issuance of medium-term notes due nine months or more from the date
of issuance by the Trust and any other trust organized in
connection with the Registration Statement (defined below), of such
notes to or through the Dealer(s) pursuant to the terms of this
Distribution Agreement, any other distribution agreement entered
into by and among the Company, the dealer(s) named therein and any
trust (other than the Trust) organized in connection with the
Registration Statement and any selling agent agreement (each, a
" Selling Agreement
") entered into by and among the Company, the agents
named therein and any trust (other than the Trust) organized in
connection with the Protective Life InterNotes® Program (the
" InterNotes®
Program, " together with the Secured
Medium-Term Notes Program, the " Program ").
The Notes are
to be issued pursuant to the Indenture. The Trust shall issue only
one series of Notes. The Trust will use the proceeds from the sale
of the Series of Notes to purchase one or more funding agreements
(each a " Funding
Agreement ") from the Company. The
Series of Notes will be secured by one or more Funding Agreement(s)
which will be assigned by the Trust to the Indenture Trustee on
behalf of the holders of the Series of Notes pursuant to the
Indenture. In connection with the sale of the Series of Notes, the
Trust will prepare a Pricing Supplement (the " Pricing Supplement ")
including or incorporating by reference a description of the terms
of the Series of Notes, the terms of the offering and a description
of the Trust.
References to
"Dealer" shall include any institution appointed as a Dealer, when
acting as an agent, pursuant to Section 10(f) below.
This
Distribution Agreement specifies terms and conditions on which the
Notes may be sold by the Trust (i) to the Dealer(s) as
principal for resale to investors and (ii) directly to
investors through the Dealer(s) as an agent of the Trust in
soliciting offers for the purchase of the Notes.
The Company has
made the requisite filings with the Securities and Exchange
Commission (the " Commission ") pursuant to
the Securities Exchange Act of 1934, as amended (the "
1934 Act "). The
Company has filed with the Commission a registration statement on
Form S-3 relating to the registration of the Funding
Agreements and the Notes under the Securities Act of 1933, as
amended
(the " 1933
Act "). Such registration statement
has been declared effective by the Commission and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as
amended (the " 1939 Act
"), and the Company has filed such post-effective
amendments thereto as may be required prior to the Trust's
acceptance of any offer for the purchase of Notes and each such
post-effective amendment has been declared effective by the
Commission. Such registration statement (as so amended, if
applicable) is referred to herein as the " Registration Statement ";
and the final prospectus and all applicable amendments or
supplements thereto (including the final prospectus supplements and
Pricing Supplement(s) relating to the offering of the Notes), in
the form first furnished to the Dealer(s) for use in confirming
sales of the Notes, are collectively referred to herein as the
" Prospectus "; provided, however, that all references to the "Registration
Statement", and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the
1934 Act, prior to any acceptance by the Trust of an offer for the
purchase of Notes; provided, further, that if the Company files a
registration statement (the " Rule 462(b) Registration Statement
") with the Commission pursuant to Rule 462(b)
of the rules and regulations of the Commission under the 1933 Act
(the " 1933 Act
Regulations ") or files a
registration statement containing a combined prospectus pursuant to
Rule 429 of the 1933 Act Regulations (the " Rule 429 Registration Statement
"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement or the Rule 429
Registration Statement, as applicable. A " preliminary prospectus "
shall be deemed to refer to any prospectus and any prospectus
supplement used before the Registration Statement became effective
and any prospectus and any prospectus supplement furnished by the
Company after the Registration Statement became effective and
before any acceptance by the Trust of an offer for the purchase of
Notes which omitted information to be included upon pricing in a
form of prospectus and prospectus supplement filed with the
Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Distribution Agreement, all
references to the Registration Statement, Prospectus or preliminary
prospectus or to any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system
(" EDGAR ").
All references
in this Distribution Agreement to financial statements and
schedules and other information which is "disclosed", "contained",
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall
be deemed to include all such financial statements and schedules
and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as
the case may be; and all references in this Distribution Agreement
to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to include the
filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be.
SECTION
1. Appointment as
Dealer.
(a)
Appointment. Subject to the terms and conditions
stated herein, the Trust and Company hereby agree that the Notes
will be sold exclusively to or through the Dealer(s) pursuant to
the terms of this Distribution Agreement. Each Dealer shall be a
United States person within the meaning of Section 7701(a)(30)
of the Internal Revenue Code of 1986, as amended.
(b)
Sale of Notes. The Company and the Trust shall not
sell or approve the solicitation of offers for the purchase of
Notes in excess of the aggregate initial offering price of notes
registered pursuant to the Registration Statement and any
additional aggregate offering price of notes registered pursuant to
a Rule 462(b) Registration Statement. The Dealer(s) shall have
no responsibility for maintaining records with respect to the
aggregate initial offering price of notes sold (including the
Notes), or of otherwise monitoring the availability of notes for
sale, under the Registration Statement.
(c)
Purchases as Principal. If agreed upon among a Dealer or
Dealers, the Trust and the Company in this Distribution Agreement,
then such Dealer(s) will act as principal in connection
with
2
any offering of the Notes by the Trust. Any
purchase of Notes from the Trust by a Dealer as principal shall be
made in accordance with Section 5(a) hereof.
(d)
Solicitations as Agent. If agreed upon among a Dealer or
Dealers, the Trust and the Company in this Distribution Agreement,
then such Dealer(s), acting solely as an agent or agents for the
Trust and not as principal, will solicit offers for the purchase of
the Notes. Such Dealer(s) will communicate to the Company and
Trust, orally or in writing, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected
by such Dealer(s). Each such Dealer shall have the right, in its
discretion reasonably exercised, to reject any offer for the
purchase of the Notes, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein. The
Trust may accept or reject any offer for the purchase of the Notes,
in whole or in part. Each such Dealer shall make reasonable efforts
to assist the Trust in obtaining performance by each purchaser
whose offer for the purchase of the Notes has been solicited by it
on an agency basis and accepted by the Trust. Each such Dealer
shall not have any liability to the Trust or Company in the event
that any such purchase is not consummated for any reason. If the
Trust shall default on its obligation to deliver Notes to a
purchaser whose offer has been solicited by a Dealer on an agency
basis and accepted by the Trust, then the Trust and Company shall
hold such Dealer harmless against any loss, claim or damage arising
from or as a result of such default by the Trust. Any purchase of
Notes from the Trust by a Dealer as an agent shall be made in
accordance with Section 5(b) hereof.
(e)
Reliance. The Trust, Company and the Dealer(s)
agree that any Notes purchased from the Trust by the Dealer(s) as
principal shall be purchased, and any Notes the placement of which
a Dealer arranges as an agent of the Trust shall be placed by such
Dealer, in reliance on the representations, warranties, covenants
and agreements of the Trust and Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION
2. Representations
and Warranties.
(a) Each
of the Trust and the Company jointly and severally represent and
warrant to each Dealer as of the date hereof, as of the date of the
acceptance by the Trust of an offer for the purchase of Notes (when
such Dealer is acting as agent), as of the date of each delivery of
Notes to the Dealer, if applicable, (whether to such Dealer as
principal or through such Dealer as an agent) (the date of each
such delivery to such Dealer as principal or through such Dealer as
agent is referred to herein as a " Settlement Date "), and as
of any time prior to the Settlement Date that the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the
determination of the variable terms of the notes offered pursuant
to the Registration Statement, including the establishment of or a
change in the interest rates, maturity or price of notes offered
pursuant to the Registration Statement or similar changes) (each of
the times referenced above is referred to herein as a "
Representation Date "), as follows:
-
(i)
Due Formation and Good Standing of the
Trust. The Trust
is either a statutory trust or common law trust, as specified in
this Distribution Agreement, duly formed under Delaware law
pursuant to the Trust Agreement and, if the Trust is a statutory
trust, the filing of a certificate of trust with the Delaware
Secretary of State, which is validly existing and in good standing
as a statutory trust or common law trust, as applicable, under the
laws of the State of Delaware.
(ii)
No Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (1) there has
been no event or occurrence that would reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise) of the Trust or on the power or ability of the Trust to
perform its obligations under this Distribution Agreement, the
Indenture, the Trust Agreement, the Funding Agreement(s), the
Administrative Services Agreement (the " Administration Agreement ")
between the trustee of the Trust (the " Trustee "), on behalf of
the Trust, and AMACAR Pacific Corp., as administrator (the "
Administrator "), the License Agreement (the " License Agreement "),
between the
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Trust and Protective Life Corporation or the
Notes or to consummate the transactions to be performed by it as
contemplated in the Prospectus (a " Trust Material Adverse Effect ") and (2) there have been no transactions entered into by
the Trust, other than those related to the Secured Medium-Term
Notes Program or in the ordinary course of business, which are
material with respect to the Trust.
(iii)
Authorization of this Distribution Agreement,
each Funding Agreement, the Trust Agreement, the Indenture,
Administration Agreement, the License Agreement and
Notes. This
Distribution Agreement, each relevant Funding Agreement, the
Indenture, the Administration Agreement and the License Agreement
have been or will be duly authorized, executed and delivered by the
Trust. Assuming that each party to this Distribution Agreement,
each relevant Funding Agreement, the Indenture, the Trust
Agreement, the Administration Agreement and the License Agreement
other than the Trust, as applicable, has duly authorized, executed
and delivered each such agreement, then this Distribution
Agreement, each relevant Funding Agreement, the Trust Agreement,
the Administration Agreement, the Indenture and the License
Agreement will each be a valid and legally binding agreement of the
Trust enforceable against the Trust in accordance with its terms,
as applicable, except (1) as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law),
(2) except as enforcement thereof may be limited by
requirements that a claim with respect to the Notes issued under
the Indenture that are payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of
payments outside the United States, (3) that no representation
or warranty is made with respect to the enforceability of
Section 6 hereof, and (4) that no representation or
warranty is made with respect to the enforceability of the Funding
Agreement(s) to the extent that the source of the funds used by the
Trust to purchase such Funding Agreement renders such funds, or any
property or investment acquired with such funds, subject to
governmental seizure or other penalty under the USA PATRIOT Act of
2001, as amended, or any other law, rule or regulation, relating to
money laundering, terrorist financing or other illegal activities;
the Notes have been duly authorized by the Trust for offer, sale,
issuance and delivery pursuant to this Distribution Agreement and,
when issued, authenticated and delivered in the manner provided for
in the Indenture and delivered against payment of the consideration
therefor, will constitute valid and legally binding obligations of
the Trust, enforceable against the Trust in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law). Subject to the
exceptions set forth in the preceding sentence, the Notes, when
executed by the Trust and issued, authenticated and delivered in
the manner provided for in the Indenture and delivered against
payment of the consideration therefor, will be entitled to the
benefits of the Indenture.
(iv)
Absence of Defaults and Conflicts.
The Trust is not in
violation of its certificate of trust, if applicable, or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan or credit agreement, note, lease or other agreement
or instrument to which the Trust is a party or by which it may be
bound or to which any of the property or assets of the Trust is
subject (the " Trust Agreements and
Instruments "), except for such
violations or defaults that would not reasonably be expected to
result in a Trust Material Adverse Effect; and (1) the
execution, delivery and performance of this Distribution Agreement,
the Indenture, the Notes, each Funding Agreement, the
Administration Agreement, the License Agreement and any other
agreement or instrument entered into or issued or to be entered
into or issued by the Trust in connection with the transactions
contemplated by
4
the Prospectus, (2) the performance of the
Trust Agreement (all agreements and instruments referenced in
clauses (1) and (2) above are referred to herein as the
" Program Documents
"), (3) the consummation of the transactions
contemplated in the Prospectus (including the issuance and sale of
the Notes and the use of proceeds therefrom as described in the
Prospectus) and (4) the compliance by the Trust with its
obligations under the Program Documents do not and will not,
constitute a breach, violation or default which (A) gives the
holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Trust under, or (B) result in the creation
or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Trust pursuant to, any Trust
Agreements and Instruments, nor will such action result in any
violation of the Trust's certificate of trust, if applicable, the
Trust Agreement and the Trust is not in default in the performance
or observance of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Trust or any of its assets, properties or operations;
provided that no representation or warranty is made with respect to
the Funding Agreement(s) to the extent that the source of the funds
used by the Trust to purchase such Funding Agreement renders such
funds, or any property or investment acquired with such funds,
subject to governmental seizure or other penalty under the USA
PATRIOT Act of 2001, as amended, or any other law, rule or
regulation, relating to money laundering, terrorist financing or
other illegal activities; provided further, that in the case of
clause (A) of this paragraph (viii), this representation
and warranty shall not extend to such repurchase, redemption or
repayment that would not result in a Trust Material Adverse Effect
and in the case of clause (B) of this paragraph (viii),
this representation and warranty shall not extend to such lien,
charges or encumbrances or any violations or defaults that would
not result in a Trust Material Adverse Effect.
(v)
Absence of Proceedings. There is no action, suit, proceeding or
investigation pending of which the Company or the Trust has
received notice or service of process, or before or brought by any
court or governmental agency or body, domestic or foreign, or to
the knowledge of the Company or Trust threatened, against or
affecting the Trust which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated
therein), or which may reasonably be expected to individually or in
the aggregate result in a Trust Material Adverse Effect.
(vi)
No Filings, Regulatory Approvals etc.
Other than as set forth or
contemplated in the Prospectus, no filing with, or approval,
authorization, consent, license, registration, qualification, order
or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the issuance and
sale of the Notes, by the Trust, except such as have been
previously made, obtained or rendered, as applicable and except
such consents, approvals, authorizations, registrations or
qualifications as may be required under the 1933 Act and the 1939
Act or under state or foreign securities or Blue Sky laws or any
rules or regulations of any securities exchange.
(vii)
Investment Company Act. The Trust is not, and upon the sale of
the Notes as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be,
required to register as an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "
1940 Act ").
(viii)
Ratings. The Program under which the Notes are
issued, as well as the Notes, as applicable, are rated by Moody's
Investors Service, Inc. or its successor (" Moody's ") and by
Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc. or its successor ("
S&P ", and
together with Moody's the " Ratings
Agencies ") as set forth in
Schedule 1 to the
Omnibus Instrument, or such other rating as to which the Company
shall have most recently
5
notified the Dealer(s) pursuant to
Section 3(b)(viii) hereof. Except as otherwise disclosed
to the Dealer(s) in writing, to the knowledge of the Company and
the Trust, no Ratings Agency has issued any public announcement or
informed the Trust or the Company that such Ratings Agency has
under surveillance or review, with possible negative implications,
its rating of the Program or the Notes or any notes issued pursuant
to the Registration Statement, as applicable, or the withdrawal of
the rating of the Program, the Notes or any notes issued pursuant
to the Registration Statement, as applicable, by such Ratings
Agency.
(ix)
Notes Listed on Any Stock Exchange.
If specified in the
applicable Pricing Supplement, the Notes described in such Pricing
Supplement shall be listed on the securities exchange designated in
the Pricing Supplement.
(x)
Beneficial Interest. The beneficial interest of the Trust
when issued will be duly authorized and, when registered in the
Securities Register (as defined in the Trust Agreement) in
accordance with the provisions of the Trust Agreement, will be a
valid and binding obligation of the Trust, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, conservatorship,
receivership or similar laws affecting creditors' rights generally
or by general principles of equity.
(xi)
Security Interest. As required by the Indenture, the Trust
pursuant to the Indenture, will create, in favor of the Indenture
Trustee, for the benefit of the holders of Notes a first priority
perfected security interest in the Collateral (as defined in the
Indenture) under New York law or the law of such other applicable
jurisdiction whose law governs such perfection, non-perfection or
priority.
(b) The
Company represents and warrants to each Dealer as of each
Representation Date, as follows:
-
(i)
Due Incorporation, Good Standing and Due
Qualification of the Company. The Company is a corporation duly
incorporated and validly existing under the laws of the State of
Tennessee with corporate power and authority to own, its properties
and to conduct its business as described in the Prospectus; the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify
or be in good standing would not reasonably be expected to result
in a material adverse change in the condition (financial or
otherwise) or in the earnings, results of operations or business
prospects of the Company and its subsidiaries considered as one
enterprise or on the power or ability of the Company to perform its
obligations under the Program Documents to which the Company is a
party or to consummate the transactions to be performed by the
Company as contemplated in the Prospectus (a " Company Material Adverse Effect
"); all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and are
validly issued, fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company were issued in
violation of preemptive or other similar rights of any
securityholder of the Company.
(ii)
Due Incorporation, Good Standing and Due
Qualification of Significant Subsidiaries. West Coast Life Insurance Company
(" West Coast Life
") has been duly organized and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where
the failure to so qualify or be in good standing would not
reasonably be expected to result in a Company Material Adverse
Effect; all of the issued and outstanding shares of capital stock
of West Coast Life has been duly authorized and is validly issued,
fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any perfected security
interest and, to
6
the Company's best knowledge, any other security
interest, mortgages, pledges, claims, liens, or
encumbrances.
(iii)
Registration Statement and Prospectus; Filing
Status. The
Company meets the requirements for use of Form S-3 under the
1933 Act; the Registration Statement (or any Rule 462(b)
Registration Statement or any Rule 429 Registration Statement,
if applicable) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement
(or any Rule 462(b) Registration Statement or any
Rule 429 Registration Statement, if applicable) has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company,
are threatened by the Commission, and any request on the part of
the Commission for additional information has been complied with;
the Indenture has been duly qualified under the 1939 Act; at the
respective times that the Registration Statement (including any
Rule 462(b) Registration Statement and any Rule 429
Registration Statement, if applicable) and any post-effective
amendment thereto (including the filing of the Company's most
recent Annual Report on Form 10-K with the Commission) became
effective and at each Representation Date the Registration
Statement (including any Rule 462(b) Registration Statement
and any Rule 429 Registration Statement, if applicable) and
any amendments thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the " 1934 Act Regulations ") and
the 1939 Act and the rules and regulations of the Commission under
the 1939 Act (the " 1939 Act
Regulations ") and did not and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; each preliminary prospectus
and Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations; each preliminary prospectus and the Prospectus
delivered to a Dealer for use in connection with an offering of
Notes will, at the time of such delivery, be identical in all
material respects to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the 1933 Act Regulations; and
at the date hereof, at the date of the Prospectus and each
amendment or supplement thereto and at each Representation Date,
neither the Prospectus nor any amendment or supplement thereto
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall not
apply to (A) statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by the
Dealer(s) expressly for use in the Registration Statement or the
Prospectus or (B) that part of the Registration Statement
which constitutes the Statements of Eligibility and Qualification
(Form T-1) under the 1939 Act of the Trustee and the Indenture
Trustee.
(iv)
Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations.
(v)
Independent Accountants. The accounting firm that certified the
financial statements and any supporting schedules thereto included
in the Registration Statement and the Prospectus is an independent
registered public accounting firm as required by the 1933 Act and
the 1933 Act Regulations.
(vi)
Company Financial Statements.
The consolidated financial
statements of the Company included in the Registration Statement
and the Prospectus, together with the related schedules
and
7
notes, present fairly the consolidated financial
position of the Company and its subsidiaries at the dates indicated
and the consolidated statement of income, stockholders' equity and
cash flows of the Company and its subsidiaries, for the periods
specified; such financial statements have been prepared in
conformity with United States generally accepted accounting
principles (" GAAP
") applied on a consistent basis throughout the
periods involved; the supporting schedules of the Company, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be
stated therein; the selected financial data and the summary
financial information of the Company included in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited financial statements of the Company included in the
Registration Statement and the Prospectus.
(vii)
Descriptions of the Program Documents.
The statements relating to
the Program Documents contained in the Prospectus conform and will
conform in all material respects to the Program Documents and the
Program Documents are substantially in the form filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(viii)
Authorization of this Distribution Agreement and
each Funding Agreement. This Distribution Agreement has been
and each Funding Agreement when issued will be duly authorized,
executed and delivered by the Company and, assuming that each party
to this Distribution Agreement and each Funding Agreement, other
than the Company, has duly authorized executed and delivered such
agreement, then this Distribution Agreement and each Funding
Agreement will be a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except (1) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), (2) that no
representation or warranty is made with respect to the
enforceability of Section 6 hereof and (3) that no
representation or warranty is made with respect to the
enforceability of the Funding Agreement(s) to the extent that the
source of the funds used by the Trust to purchase such Funding
Agreement(s) renders such funds, or any property or investment
acquired with such funds, subject to governmental seizure or other
penalty under the USA PATRIOT Act of 2001, as amended, or any other
law, rule or regulation, relating to money laundering, terrorist
financing or other illegal activities.
(ix)
Absence of Defaults and Conflicts.
Neither the Company nor West
Coast Life is in violation of the provisions of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or West Coast Life is a party or by which they may be
bound or to which any of the property or assets of the Company or
West Coast Life is subject (collectively, " Company Agreements and Instruments
"), except for such defaults that would not result
in a Company Material Adverse Effect; the execution, delivery and
performance of this Distribution Agreement, each Funding Agreement
and any other agreement or instrument entered into or issued or to
be entered into or issued by the Company in connection with the
transactions contemplated in the Prospectus, the consummation of
the transactions contemplated in the Prospectus (including the
issuance and sale of the Notes and the use of the proceeds
therefrom as described in the Prospectus) and the compliance by the
Company with its obligations thereunder do not and will not
constitute a breach, violation or default which (A) gives the
holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or West Coast Life under, or
(B) result in the creation or imposition of any lien, charge
or
8
encumbrance upon any assets, properties or
operations of the Company or West Coast Life pursuant to, any
Company Agreements and Instruments, nor will such action result in
any violation of the provisions of the charter, articles or by-laws
of the Company or West Coast Life or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or West Coast Life or
any of their assets, properties or operations; provided that no
representation or warranty is made with respect to the Funding
Agreement(s) to the extent that the source of the funds used by the
Trust to purchase such Funding Agreement(s) renders such funds, or
any property or investment acquired with such funds, subject to
governmental seizure or other penalty under the USA PATRIOT Act of
2001, as amended, or any other law, rule or regulation, relating to
money laundering, terrorist financing or other illegal activities;
provided that in the case of clause (A) of this
paragraph (ix), this representation and warranty shall not
extend to such repurchase, redemption or repayment that would not
result in a Company Material Adverse Effect and in the case of
clause (B) of this paragraph (ix), this representation
and warranty shall not extend to such lien, charges or encumbrances
or any violations or defaults that would not result in a Company
Material Adverse Effect.
(x)
Absence of Proceedings. There is no action, suit, proceeding or
investigation pending of which the Company has received notice or
service of process, or before or brought by any court or
governmental agency or body, domestic or foreign, or to the
knowledge of the Company threatened, against the Company which is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which would
individually or in the aggregate result in a Company Material
Adverse Effect.
(xi)
Possession of Licenses and Permits.
Each of the Company and West
Coast Life is duly organized and licensed as an insurance company
in its state of incorporation and is duly licensed or authorized as
an insurer in each other jurisdiction where it is required to be so
licensed or authorized, with corporate power to conduct its
business as described in the Prospectus (except for any such
jurisdiction in which the failure to be so licensed or authorized
would not reasonably be expected to have a Company Material Adverse
Effect); and except as otherwise specifically described in the
Prospectus, neither the Company nor West Coast Life has received
any notification from any federal, state, local or foreign
regulatory authority to the effect that any additional
authorization, approval, order, consent, license, certificate,
permit, registration or qualification from such federal, state,
local or foreign regulatory authority is needed to be obtained by
either the Company or West Coast Life in any case where it would be
reasonably expected that the failure to obtain any such additional
authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a Company Material
Adverse Effect.
(xii)
No Filings, Regulatory Approvals etc.
Other than as set forth or
contemplated in the Prospectus, no filing with, or approval,
authorization, consent, license, registration, qualification, order
or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the issuance and
sale of the Funding Agreements by the Company, except such as have
been previously made, obtained or rendered, as applicable and
except such consents, approvals, authorizations, registrations or
qualifications as may be required under the 1933 Act and the 1939
Act or under state or foreign securities or Blue Sky laws or any
rules or regulations of any securities exchange.
(xiii)
Investment Company Act. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be required to register as an "investment
company" within the meaning of the 1940 Act.
9
(xiv)
Ratings. The Company's financial strength is
rated by Moody's and S&P as set forth in Schedule 1 to the Omnibus
Instrument, or such other rating as to which the Company shall have
most recently notified the Dealer(s) pursuant to
Section 3(b)(viii) hereof. Except as otherwise disclosed
to the Dealer(s) in writing, to the Company's knowledge, no Ratings
Agency has issued any public announcement or informed the Company
that such Ratings Agency has under surveillance or review, with
possible negative implications, its rating of the financial
strength of the Company, or the withdrawal of the financial
strength rating of the Company.
(xv)
Absence of Default Under Each Funding
Agreement. To the
Company's knowledge, there exists no event or circumstance which
does or may (with the passing of time, the giving of notice, the
making of any determination, or any combination thereof) be
reasonably expected to constitute an event of default under any
outstanding funding agreeme
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